Weekly Notes: legal news from ICLR – 21 November 2014

This week’s selection of legal news includes restorative justice, fictitious litigation, the tale of a tweet that tanked and a copyright fight over nudie pics. Plus some exotic injustice from foreign parts.

Restorative Justice Week

“What would you do” campaign

The question relates to what you would do if you could meet someone who had committed a crime against you. The Restorative Justice Council (RJC) marked this year’s International Restorative Justice Week, which runs from 16 to 23 November, by using the campaign to raise awareness of restorative justice in collaboration with the Ministry of Justice (MOJ), Why Me? And the Chris Donovan Trust.

Restorative justice gives victims the chance to meet or communicate with their offenders to explain the real impact of the crime – it empowers victims by giving them a voice. It also holds offenders to account for what they have done and helps them to take responsibility and make amends. Government research demonstrates that restorative justice provides an 85% victim satisfaction rate, and a 14% reduction in the frequency of reoffending.

Presumably, it depends a good deal on the nature of the crime, as well as the willingness of both participants. For example, the organisation Victim Support notes that “restorative justice is a relatively new approach” but believes it to be “very effective and we’d like to see if offered to many more victims of crime.

The case that wasn’t

The High Court set aside an order made against a litigant after it emerged that his solicitor had duped him by conducting “fictitious” litigation that included faked judgments and telephone conferences involving the impersonation of his senior partner and of leading counsel.

1. The facts giving rise to the present application are so extraordinary that they could have come from one of A.P.Herbert’s “Misleading Cases”.
2. As with A.P. Herbert’s “Uncommon Law”, this case involves the false document literary technique – the creation of a sense of authenticity through the invention of documents which appear to be factual.
3. The “author” in this case was Mr Andrew Benson, then a partner in Byrne & Partners LLP who was purporting to act for the Second Defendant, Rajesh Mehta (“RM”).
4. From the end of October 2010 until December 2013 he conducted fictitious litigation for RM. That litigation involved fictitious hearings before the Commercial Court and the Court of Appeal; purported judgments of those courts; purported sealed court orders; a purported hearing transcript; purported skeleton arguments; purported correspondence with court officials and the Claimant’s solicitors, Norton Rose; the fictitious instruction and engagement of various counsel, and telephone conferences involving the impersonation of his senior partner and of leading counsel. None of this reflected reality. Throughout that period there was in fact no contact with Norton Rose or the court.
5. The deception was finally discovered in December 2013 when questions were asked about a transcript of a purported hearing before Popplewell J. and his real clerk was contacted directly.
6. Mr Benson has been dismissed from Byrne & Partners and is under investigation by the Metropolitan Police and the Solicitors Regulation Authority (“SRA”).
7. The present application seeks the setting aside of orders made by the court at the time Mr Benson was purportedly acting for RM in real litigation.

AP Herbert (Sir Alan Patrick Herbert) wrote his “misleading cases” in the comic magazine Punch in the 1920s. He had been called to the Bar but never practised, and as well as writing fiction and humorous sketches, he became Member of Parliament for Oxford University in 1935 and campaigned in favour of law reform. He was president of the Society of Authors and was later knighted. I cannot help but think he may well have had something to say about the next item.

Kidnapping and false imprisonment law reform

Law Commission report suggests new statutory offences

Following consultation, the Law Commission proposes the 17th century common law offence of kidnapping be replaced by a new, slightly narrower statutory offence of kidnapping, and that the separate common law offence of false imprisonment be replaced with a new statutory offence of unlawful detention.

Judge not, lest ye be judged

The Judicial Appointments Commission has put out a call for some new High Court judges. There are ten vacancies, which you need to apply for by 27 November. According to the JAC announcement:

To apply you must be a high performing lawyer with at least seven years post qualification experience (PQE) and the ability to demonstrate leadership as Judges in these Divisions may be appointed to serve as Presiding Judges, Chancery Supervising Judges or Family Division Liaison Judges.

You do not need to be a QC or to have sat as a Deputy High Court Judge.

Full details, including breakdown of where judges are needed and provision for flexible working time (but remember you can be “on call” for emergency orders), on JAC website.

Tweet not, lest ye be twitted (or tut-tutted) (or even sacked)

Emily Thornberry, a barrister and the MP for Islington South, was until Thursday a member of the shadow cabinet as Labour’s choice for the post of Attorney General, should it form a government. She is an active MP, judging by her twitter timeline (which I follow), often to be seen canvassing and appearing at meetings in Islington and elsewhere.

Yesterday’s problem occurred elsewhere – in Rochester (or, to be precise, Strood) – where she had gone in the rather futile endeavour of drumming up support for the local Labour candidate in a by-election caused by the resignation of the sitting MP, Mark Reckless, when he defected from the Conservative party to UKIP.

The likelihood of Reckless not being returned as MP for UKIP was slender, otherwise he’d have been more than living up to his name, but a by-election is a big political event, upon which punditry and hot air must needs be expended to fill the vacuum abhored by the media. So MPs of all parties were induced to sally forth to Rochester (and Strood) and to strut (or strood) their stuff. Thornberry did so too.

In the course of her peregrinations she tweeted a photograph with the caption “Image from #Rochester”. The photograph showed a house adorned with not just one but three England (red cross of St George) flags, in front of which was parked a plain white delivery van.

This communication was interpreted (somewhat imaginatively I have to say) by the Sun and Daily Mail (inter alios) as a “sneer” at the ordinary people of Rochester generally (and at the man who was later referred to as “White Van Dan” in particular). By the end of the day, she had decided or been persuaded to resign her role as shadow Attorney General.

Given how often people keep their jobs after much worse, this seems a bit bonkers. The only comment I might make is that I never had a particular strong sense of her as a shadow law officer – though no doubt she did speak up on a number of legal issues. More interestingly, she was formerly a member of Tooks Chambers, headed by Michael Mansfield QC, members of which had represented clients in the Guildford Four, the Birmingham Six, the Lawrence family and other prominent cases, but which had to close down last December by reason of the legal aid cuts which were devastating the justice system.

The moral of the story is that MPs need to be aware that their timeline on Twitter (and on Facebook, LinkedIn etc) is a public relations feed read not just by their chums and co-workers but also by the political editor of the Sun and a host of ill-wishers of every hue and cry. While it is good for MPs to use Twitter as an engine of political engagement, it would be sad if their excessive caution rendered their timelines too dull to make a difference, a point Paul Bernal makes with rather more elegance in his overnight blog post: #TweetlikeanMP?

This week’s slightly silly story…

Infringe porn

As a High Court judge sitting in the Intellectual Property Enterprise Court, Mr Justice Birss presumably spends more time poring over pictures of technical inventions in support of patent applications or the beauties of modern design the subject of passing off claims, than he does comparing pornographic images of sack artistes for hire in copyright litigation. But this was the subject matter of Omnibill (Pty) Ltd vEgpsxxx Ltd (in liquidation)[2014] EWHC 3762 (IPEC).

This is how the judge set the scene (para 1):

This is a copyright action. It relates to copyright in a large number of photographs. The photographs appear on a website operated by the claimant for the provision of escort services in South Africa. The claim arises because copies of the photographs have appeared on a website providing similar and competing services at www.escortgps.xxx. I will refer to this website as the Escortgps website. There is not now any dispute that copyright in the photographs belongs to the claimant or that copies of the photographs were taken from the claimant’s website and placed onto the Escortgps website in question. The photographs are used as part of advertisements by escorts offering escort services. The advertisements are generally pornographic in nature.

After solving issues relating to the actual responsibility for setting up and running the defendant website, Birss J addressed the relevant copyright issues, notably whether there was an infringement of UK copyright. While admitting unauthorised reproduction and communication to the public of the claimant’s works, Mr Robert Ashley Carter (the second defendant) denied that any of the allegedly infringing acts had taken place in the UK. The judge addressed this issue by looking at whether the website or relevant parts of it were “targeted at the UK public”. Having referred to, inter alia, the decision of the Court of Justice of the European Union in Pammer v Reederei Karl Schlüter GmbH & Co KG (Joined Cases C-585/08 and C-144/09) [2012] Bus LR 972 (a case concerning travel advertising), he concluded that it was.

Law (and injustice) around the world

Gambia

New homophobic law imposes life sentence for “aggravated homosexuality”

The new crime of “aggravated homosexuality,” which carries punishments of up to life in prison, is part of a criminal code President Yahya Jammeh approved on October 9, 2014, reports Human Rights Watch

Exactly what constitutes “homosexuality” or a “homosexual act” is not defined in Gambian law.

Among those who could be charged with “aggravated homosexuality” are “serial offenders” and people living with HIV who are deemed to be gay or lesbian.

“The new law treats consensual, private sexual activity between adults of the same sex – which should not be a crime – in the same way as rape and incest,”

said Steve Cockburn, deputy regional director for West and Central Africa at Amnesty International.

“Arresting and torturing people based on their sexual orientation is shameful, and inventing new crimes with even harsher sentences is scandalous,” Cockburn said. “Gambia’s new law not only flouts African human rights obligations, it violates its own constitution, which says that all people must be equal and free from discrimination before the law.”

Iran

Woman jailed for trying to gain access to a volleyball match in Tehran, is freed on bail.

A bit of good news from Iran, for a change, though the underlying story is still monstrous. Ghoncheh Ghavami, an Iranian-British lawyer, who was jailed for trying to attend a men’s volleyball game in Iran, has now been freed on bail. For background – see Weekly Notes – 12 September, 10 October, and 9 November.

More than 728,000 people had signed an online petition asking for Ms Ghavami to be released, according to Channel 4 News.

Sweden

Assange appeal refused

Julian Assange, currently holed up in the Ecuadorian Embassy in London to avoid being deported to Sweden, where the Court of Appeal has upheld the detention order issued in 2010, rejecting his appeal for it to be revoked.

In a statement, the court said there was “no reason to set aside the detention solely because Julian Assange is in an embassy and the detention order cannot be enforced at present for that reason”. However, the court criticised Swedish prosecutors for not making enough effort to explore “alternative avenues” to interrogate Mr Assange.

The defence team are planning to take the ruling to the Supreme Court.

United States of America

Ohio men wrongly convicted for murder released after 39 years

According to NBC News, Ricky Jackson, 57, and Wiley Bridgeman, 60, say they don’t harbor bitterness over their unjust punishment. Jackson, who was originally sentenced to death, is the longest-held U.S. prisoner to be exonerated, the Ohio Innocence Project said. The convictions were quashed after a witness revealed he had been coerced by detectives and recanted his evidence.

Finally, don’t forget this week’s ICLR Case Law alert – a list of the latest law reports and (free) case summaries from the home of law reporting.

This post was written by Paul Magrath, Head of Product Development and Online Content at ICLR. It does not necessarily represent any views of ICLR as an organisation.